On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-424-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Coburn.
Appellant, J.B., now thirty-four years of age, appeals from Judge McLaughlin's December 7, 2009 order determining that he met the criteria for civil commitment as a sexually violent predator and recommitting him to the Special Treatment Unit (STU), a secure custodial facility designed for the treatment of persons in need of involuntary civil commitment pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. On appeal, J.B. argues that the State failed to prove by clear and convincing evidence that he was highly likely to re-offend, and that he therefore no longer meets the criteria for commitment.*fn1 We disagree and affirm.
Appellant's history reflects a longstanding pattern of sexual offenses. On September 14, 1994, appellant went to the house of his former girlfriend, A.J., and sexually assaulted her. She claimed that appellant threw her on the bed and put his hand over her face and nose, cutting off her breath, and that she struggled so hard that she kicked a hole in the wall. The next day, appellant was arrested and charged with sexual assault.
On or about September 21, 1994, M.S. met appellant in the lobby of a police station and walked to a location where appellant pushed her into the back seat of a vehicle and forcefully sexually assaulted her. Appellant was arrested and charged with sexual assault with force. On November 9, 1995, appellant was convicted of two counts of sexual assault, for A.J. and M.S., and sentenced to five years at Avenel Diagnostic and Treatment Center.
Subsequently, on November 4, 2003, K.H. told police that she had accepted a ride home from appellant. Appellant pulled over and asked K.H. if she wanted to talk in the back seat, and when K.H. declined, appellant pulled her out of the car and threw her into the back seat. There appellant sexually assaulted K.H. Appellant was arrested and charged with sexual assault and criminal sexual contact, and was convicted on March 24, 2005 of criminal sexual contact in the fourth-degree and sentenced to eighteen months in prison.
Appellant's convictions were the result of the commission of sexually violent offenses as defined in N.J.S.A. 30:4-27.26. On February 1, 2006, an order was entered requiring appellant to submit to a psychiatric evaluation on February 3, 2006 at the STU. Appellant failed to appear for the court ordered evaluation, and pursuant to a court order of February 9, 2006, appellant was arrested and taken to the Anne Klein Forensic Center.
Subsequently, the State filed a petition seeking appellant's civil commitment pursuant to the SVPA. On March 31, 2006, the Honorable Serena Perretti, J.S.C. found probable cause to believe that appellant was a sexually violent predator and issued a temporary commitment order authorizing his transfer to the STU pending a final hearing. Appellant was temporarily committed to the STU on the same day. A final hearing was held on October 16-18, 2006, and on November 1, 2006, Judge Perretti found that the State's evidence established that appellant was a sexually violent predator and, as a result, the court ordered that he be remanded to the STU.
Appellant appealed the court's decision of November 1, 2006. We affirmed on July 31, 2008, No. A-1447-06T2. A review hearing was subsequently held on December 8, 2008, and on the same date, Judge Perretti determined that appellant continued to be a sexually violent predator in need of confinement in the STU. Another review hearing was held on November 30, 2009, and on December 7, 2009, Judge McLaughlin determined that appellant continued to be a sexually violent predator and ordered that he remain confined to the STU. Appellant now appeals from the December 7, 2009 decision.
At the November 30, 2009 hearing, the State presented the testimony of Dr. Howard Gilman, a psychiatrist, who testified that appellant refused to participate in an interview with him. Nevertheless, Dr. Gilman testified that he was able to render his opinion within a reasonable degree of psychiatric certainty based on a review of various legal, psychiatric, psychological, and treatment reports containing historical data. Based on these materials, Dr. Gilman diagnosed appellant with antisocial personality disorder, and testified that this diagnosis predisposes appellant to commit acts of sexual violence based on his history. He also diagnosed appellant with having a dependence on various substances, including cocaine, alcohol, and cannabis. Dr. Gilman opined that appellant is "at a high risk to sexually reoffend" unless recommitted. Dr. Gilman's report, prepared November 20, 2009 and admitted into evidence, was consistent with his testimony.
The State also presented the testimony of Dr. Nicole Paolillo, a psychologist. After appellant refused to participate in an interview, Dr. Paolillo formulated an opinion about appellant after reviewing his case history and testified that she could render an opinion within a reasonable degree of psychological certainty. She ruled out diagnoses of paraphilia NOS non-consent and depressive disorder NOS, but diagnosed appellant with antisocial personality disorder and drug and alcohol abuse. Dr. Paolillo thus recommended that appellant begin the process of engaging in treatment given his limited experience in this regard. Her testimony ...